36 F. 59 | U.S. Cir. Ct. | 1888
(orally.') The material facts of this case are the following: On the 16th June, 1887. the Montgomery Oil-Works drew its draft on the American - Cotton-Oil Company of Cincinnati, for the sum of $2,379.56, in favor of the First National Bank of Montgomery, Ala. Tlie payee forwarded the draft to the Fidelity National Bank.for collection, under a special indorsement thereof, as follows: “Pay to Ammi Baldwin, cashier, or order, for collection, for account of the First National Bank of Montgomery, Ala.” The draft so indorsed was received by the Fidelity National Bank, at Cincinnati, on June 18, 1887; was duly presented on that day for payment, and was paid and taken up by the drawee, who gave its check on the Citizens’ National Bank of Cincinnati, to the Fidelity National Bank, for the amount of the draft.This check of the drawee, so accepted by the Fidelity National Bank, was received and treated as money. It was placed in the cash-drawer of said collecting bank as so much cash, and at the close of that day’s business the amount of said collection was deducted from the total amount of cash on band belonging to said Fidelity National Bank, and the letter of transmission from tlie First National Bank of Montgomery was placed in the- cash-drawer of said collecting bank to indicate that said sum of $2,379.56 so deducted from the total cash, but still left in the casli-drawer in the shape of said check given by the drawee in tak*
“■Well, at the end of this day’s business, [June 18, 1887,) as that money was not remitted, by order of Harper, [the vice-president,) and as they, the First National Bank of Montgomery, had no regular credit account with the Fidelity, instead of remitting it we simply took that much off the total-amount of our cash; not actually taking the money out, but taking off the total of our cash, the $2,379.56, which made our cash appear that much less-than it really was.”
This was again done on the afternoon of June 20, 1887, after the drawee’s check, which took up the draft, had been collected by the Fidelity Bank through the clearing-house. It thus appears that this fund belonging to the First National Bank of Montgomery was, so far as the book-keeping of the collecting bank could do so, separated and kept dis- ' ti-nct from the other cash belonging to the Fidelity Bank, and was further identified by placing in the cash:drawer the transmitting bank’s Letter, to indicate that said excess of cash on hand belonged to that bank. The Fidelity National Bank transacted no business after June 20,1887., It was insolvent, and the comptroller of the currency, on the morning of June 21, 1887, caused its doors to be closed, and took possession of its assets. The defendant, David Armstrong, -was appointed receiver, and upon taking possession of the bank’s effects he found on hand said excess of $2,379.56 more than belonged to the Fidelity National Bank, and in the cash-drawer said memorandum indicating that said excess belonged to the First National Bank of Montgomery. Finding in the cash assets of the bank this sum of $2,379.56 more than the Fidelity National Bank was entitled to, with the memorandum indicating to whom it actually belonged, the receiver, for the purpose of disposing of it, or of accounting for the same, on the 15th September, 1887, credited the amount to the First National Bank of Montgomery on the books of the Fidelity Bank. “He did that,” says the clerk, “because we had this $2,379.56 more cash than our books called for.”
It is well settled by the authorities, and was so held by this court in the case of Winter’s Bank v. Armstrong,
No opinion Hied.